Telangana High Court
S.V. Choudhary, Visakhapatnam. vs M/S. Mahalakshmi Leasing Ltd., Secbad. ... on 3 September, 2025
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE JUSTICE GADI PRAVEEN KUMAR
CIVIL MISCELLANEOUS APPEAL No.204 of 2009
Mr.Bharath Chandra Madas, learned counsel representing Mr.Srinivasa Rao Boddaluri,
learned counsel appearing for the appellant.
JUDGMENT:
(Per Hon'ble Justice Moushumi Bhattacharya)
The Civil Miscellaneous Appeal arises out of an order dated
06.11.2008 passed by the Judge, Family Court, Secunderabad ('Trial
Court') in I.A.No.616 of 2006 in O.S.No.30 of 2000, filed by the
appellant under Order IX Rule 13 and Order XVII Rule 2 of The Code
of Civil Procedure, 1908 ('CPC') for setting aside the ex parte decree
dated 30.06.2006.
2. The appellant is the defendant No.4 in the Suit (O.S.No.30 of
2000) filed by the respondent No.1/plaintiff for recovery of an amount
of Rs.28,47,967.75 ps., from the defendant Nos.1 to 4 jointly and
severally along with future interest @ 24% per annum and costs.
3. Learned counsel appearing for the appellant claims that after
the Trial Court passed the ex parte decree in the Suit on 30.06.2006,
the appellant filed I.A.No.616 of 2006 on 29.07.2006 for setting aside
the said ex parte decree. Counsel submits that the appellant's
Advocates prepared a Written Statement denying the involvement of
the appellant/defendant No.4 and obtained the signatures of the
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appellant on the Written Statement. The appellant was later informed
that the defendant Nos.1 to 3 remained ex parte and that the
defendant No.4 was the sole contesting defendant in the Suit. The
appellant's Advocates also gave an impression to the appellant that
the Suit was misconceived and the appellant has a good chance of
success in the Suit.
4. According to counsel, the appellant was assured by his
Advocates at all material times. However on 26.06.2006, the
appellant suddenly received information that the Suit was posted for
judgment on 30.06.2006, on which date the matter was closed
without any representation on behalf of the appellant. The appellant
thereafter made serious allegations against his erstwhile Advocates
with regard to forging his signatures on the affidavits and puts the
entire blame on his erstwhile Advocates for the non-representation.
5. The above submissions would also be borne out from the
Affidavit filed on behalf of the appellant in the Application under Order
IX Rule 13 of the CPC for setting aside the ex parte decree dated
30.06.2006.
6. The Proceeding Sheets show that the respondent No.1/plaintiff
was not represented in the Appeal. The respondent Nos.2 to 4 are
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proforma parties to the Appeal, as reflected in the Cause Title. The
proof of service shows that the notice sent to the respondent No.1 was
returned as 'not claimed'.
7. The Proceeding Sheets further reflect that the appellant was
granted interim stay of execution of the ex parte decree dated
30.06.2006 by a Co-ordinate Bench on 06.03.2009 and the stay is
continuing till date. The Appeal was listed before a Co-ordinate Bench
on 06.08.2025 whereby the Co-ordinate Bench directed the matter to
be listed under the caption 'For Dismissal'. The Appeal was listed
before this Bench on 20.08.2025 on which date the appellant
remained un-represented. On the returnable date, counsel appearing
for the appellant sought for time. The matter was thereafter heard on
22.08.2025 and was reserved for Judgment.
8. Since no one appeared for the respondent No.1/plaintiff, we
have considered the case of the appellant and perused the material on
record for adjudication of the instant Appeal. We have also carefully
perused the impugned order dated 06.11.2008.
9. The primary point for adjudication is whether the impugned
order dismissing the appellant's Application for setting aside the ex
parte decree dated 30.06.2006 calls for interference.
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10. Paragraphs 6 and 7 of the impugned order records the relevant
facts which culminated in dismissal of the appellant's Application.
The facts as recorded by the Trial Court are stated below.
(a) An ex parte order was passed in the Suit against
the appellant/defendant No.4 on 28.03.2000 which
was later set aside by order dated 18.12.2000 passed
in I.A.No.1842 of 2000 and consequently the
appellant filed his Written Statement.
(b) On 03.12.2004, the appellant filed his Chief
Affidavit as PW.1 in I.A.No.616 of 2006 and Advocate
Commissioner was appointed to record the evidence
of both sides on 23.03.2005 and the Commissioner
Report was filed on 25.10.2005.
(c) The appellant/defendant No.4 was again set ex
parte on 27.12.2005 and the matter was posted to
30.12.2025 for judgment. The judgment was
pronounced on that date.
(d) The ex parte decree was set-aside on 08.03.2006
on a condition of the appellant cross-examining the
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respondent No.1/plaintiff on 14.03.2006. The
appellant failed to comply with the said condition and
the plaintiff's evidence was closed on 14.03.2006 and
the matter was posted for defendant's evidence. The
defendant's evidence was closed on 17.03.2006 and
the matter was posted to 27.03.2006 for judgment.
(e) The appellant/defendant No.4 filed I.A.Nos.235
and 349 of 2006 to reopen the evidence of PW.1 and
recall PW.1, respectively. Both the I.As were
dismissed on 23.06.2006 and decree was passed on
30.06.2006.
(f) The appellant made serious allegations against
his counsel including of forging the appellant's
signature in I.A.Nos.235 and 349 of 2006. However,
the appellant failed to avail of the opportunity given to
him for cross-examining PW.1 (plaintiff in the Suit).
(g) The appellant/PW.1 (petitioner in I.A.No.616 of
2006) in his cross-examination admitted to failing to
appear before the Court after filing the Written
Statement and passing of decree on 30.06.2006.
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(h) The impugned order also records that the
evidence of appellant as PW.1 shows that he did not
file any correspondence to prove that he consulted his
Advocate regarding the progress of the case, as was
contended in the Affidavit. Further the cross-
examination of PW.1/appellant also shows that he did
not file any complaint against his erstwhile advocate
for forgery or otherwise. Moreover, PW.2 (appearing
for the appellant/defendant No.4) stated that he
informed PW.1 on 26.06.2006 that the case was
posted for judgment on 30.06.2006. However, the
appellant chose not to appear before the Court for
taking necessary steps.
(i) The Trial Court found that the appellant had
denied signatures in the two I.As. only for the purpose
of filing I.A.No.616 of 2006 for setting aside ex parte
decree and that the conduct of the appellant revealed
that he was not diligent in contesting the Suit. The
Trial Court accordingly concludes that the appellant's
absence was intentional.
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(j) The Trial Court hence did not give any weightage
to Exhibits A.1 (Notice issued to erstwhile Advocate of
the appellant), A.2 (Reply Notice) and A.3 (Postal
Cover), filed on behalf of the appellant/defendant
No.4 for the reason that the said Exhibits were filed
by the appellant only as an afterthought.
(k) The Trial Court accordingly proceeded to dismiss
I.A.No.616 of 2006 which was filed by the appellant
for setting aside decree dated 30.06.2006.
11. We have considered the reasons given by the Trial Court in
dismissing the appellant's Application for setting aside the ex parte
decree dated 30.06.2006. The impugned order contains clear reasons
for dismissing the appellant's Application. The narration of events in
paragraphs 6 and 7 of the impugned order shows that the appellant
was given several opportunities to contest the Suit but failed to show
any diligence even thereafter.
12. The first ex parte order dated 28.03.2000 was set aside on
08.12.2000 permitting the appellant to file Written Statement. Even
after being given an opportunity the appellant did not take any steps
to contest the Suit and was hence set ex parte on 27.12.2005. The
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Judgment pronounced thereafter on 30.12.2005 was also set aside on
08.03.2006 and the appellant again failed to avail of this opportunity.
We do not wish to repeat the fact since they have already been
narrated above.
13. In view of the above, we do not find any reason to interfere with
the findings given by the Trial Court since the narration of events has
been taken from the docket proceedings before the Trial Court.
Moreover, we find that the appellant failed to prove any of the serious
allegations made against his erstwhile Advocates with regard to
forgery of his signatures. The cross-examination of PW.1 also
contains several admissions with regard to the appellant's lack of
diligence in contesting the Suit.
14. Therefore, the submissions made on behalf of the appellant are
not corroborated from the records. It is also significant that the
appellant has been enjoying interim stay of execution of the ex parte
decree dated 30.06.2006 on and from 06.03.2009 i.e., for the last 16
years. The Proceeding Sheets in the present Appeal also show that
the appellant has not shown any interest in pursuing the Appeal after
obtaining interim stay and is enjoying the same since 06.03.2009
onwards.
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15. We accordingly do not find any merit in the Appeal or any
reason to interfere with the impugned order dated 06.11.2008.
16. CMA.No.204 of 2009 is accordingly dismissed for the above
reasons. Miscellaneous applications pending, if any, shall stand
closed. Interim order dated 06.03.2009 stands vacated. There shall
be no order as to costs.
_________________________________
MOUSHUMI BHATTACHARYA, J
____________________________
GADI PRAVEEN KUMAR, J
3rdSeptember, 2025.
BMS
